Indian Penal Code, 1860 (45 of 1860), Sections 376, 506 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Third regular bail application -- Rape case – Prosecutrix turned hostile -- Similarly, her husband also resiled from the statement recorded earlier before the Addl. Sessions Judge -- Petitioner is stated to be the husband of the Bua – Since the parties are closely related and the complainant had not supported her own case, Court is of the opinion that no tangible purpose would be served by keeping the petitioner in further custody since the trial is likely to take some time to conclude.

(Para 2-4)

Indian Penal Code, 1860 (45 of 1860), Section 304-B -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Dowry death – Regular bail -- Co-accused father-in-law and brother-in-law have already been granted bail -- No suicide note left by the deceased – Petitioner/mother-in-law is in custody since 1.3.2021 -- Investigation is complete, challan has been presented -- There are no allegations in the FIR with regard to any physical injury etc being inflicted by the petitioner -- Conclusion of trial is likely to take time; no useful purpose would be served by keeping the petitioner behind bars and more-over considering the age of the petitioner, she is granted bail.

(Para 5, 6)

Indian Penal Code, 1860 (45 of 1860), Sections 363, 376, 120-B – Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of 1989), Section 3 – Immoral Traffic (Prevention) Act, 1956 (104 of 1956), Sections 4, 5, 6 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 389 – Suspension of sentence – Applicant undergone sentence of 3 years, 11 months and 23 days out of 7 years -- No other case pending against him -- Appeal being of the year 2020 is not likely to be heard in near future, so taking into consideration the period undergone and the attending circumstances and the fact that sentence of co-accused of applicant has already been suspended, sentence of applicant/appellant No.2 suspended during the pendency of the appeal.

(Para 5, 6)

Indian Penal Code, 1860 (45 of 1860), Section 306 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Abetment to suicide -- Regular bail -- Custody of 03 months and 03 days – Challan has already stands presented and the petitioner is the sister-in-law of the deceased – Court find in agreement with the arguments raised by the counsel for the petitioner that any further incarceration of the petitioner is not warranted in the case -- Petition is allowed.

(Para 2-6)

A. Indian Penal Code, 1860 (45 of 1860), Section 304-B – Dowry death – Object of -- It endeavors to address those situations wherein murders or suicide are masqueraded as accidents.

(Para 22)

B. Indian Penal Code, 1860 (45 of 1860), Section 304-B – Indian Evidence Act, 1872 (1 of 1872), Section 113-B – Dowry death – Presumption of -- Doctor found the smell of kerosene oil on the body of the deceased who had suffered 85% burn injuries -- As the death was relatable to burn injuries within seven years of marriage, it clearly satisfies the first two ingredients of the offence – Evidence, when the brother of the deceased visited her in the matrimonial house after one month of marriage on the occasion of Raksha Bandhan, the deceased had disclosed that the accused, husband and mother-in-law, used to physically harass her on the account of bringing insufficient dowry -- Furthermore, the accused persons had made a specific demand of a scooter -- She was brought back to her paternal house where this fact was disclosed to father -- Only a month prior to her death, the deceased had returned to her matrimonial house -- However, the accused still used to harass the deceased for dowry -- Aforesaid fact was revealed by the deceased to her father, when she had come to visit him -- Chain of circumstances proves that there existed a live and proximate link between the instances of demand of dowry and the death of the deceased -- Since the ingredients of Section 304-B, IPC stand satisfied, the presumption u/s 113-B, Evidence Act operates against the appellants, who are deemed to have caused the offence specified u/s 304-B of IPC.

(Para 23-28)

C. Indian Penal Code, 1860 (45 of 1860), Section 306 – Indian Evidence Act, 1872 (1 of 1872), Section 113-A – Suicide by wife – Presumption of -- For the offence u/s 306, IPC the prosecution needs to first establish that a suicide has been committed -- Prosecution must also prove that the person who is said to have abetted the commission of suicide, has played an active role in the same -- With respect to this latter requirement, Section 113-A, Evidence Act creates a presumption against the husband and/or his relative with respect to the abetment of suicide of a married woman, under certain conditions -- Not going into the other conditions, a perusal of the provision indicates that such presumption shall be attracted only if the factum of suicide has been established by the prosecution first.

(Para 33)

D. Indian Penal Code, 1860 (45 of 1860), Section 304-B – Indian Evidence Act, 1872 (1 of 1872), Section 113-B – Dowry death – Presumption of -- Rebuttal of -- Section 304-B, IPC read with Section 113-B, Evidence Act can be summarized below:

i. Section 304-B, IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.

ii. The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304-B, IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113-B, Evidence Act operates against the accused.

iii. The phrase “soon before” as appearing in Section 304-B, IPC cannot be construed to mean ‘immediately before’. The prosecution must establish existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.

iv. Section 304-B, IPC does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental. The reason for such non categorization is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental.

v. Due to the precarious nature of Section 304-B, IPC read with 113-B, Evidence Act, Judges, prosecution and defence should be careful during conduction of trial.

vi. It is a matter of grave concern that, often, Trial Courts record the statement under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. It ought to be noted that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it based on the fundamental principle of fairness. This aforesaid provision incorporates the valuable principle of natural justice “audi alteram partem” as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the court to question the accused fairly, with care and caution.

vii. The Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense since the inception of the Trial with due caution, keeping in consideration the peculiarities of Section 304-B, IPC read with Section 113-B, Evidence Act.

viii. Section 232, CrPC provides that, “If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal”. Such discretion must be utilized by the Trial Courts as an obligation of best efforts.

ix. Once the Trial Court decides that the accused is not eligible to be acquitted as per the provisions of Section 232, CrPC, it must move on and fix hearings specifically for ‘defence evidence’, calling upon the accused to present his defense as per the procedure provided under Section 233, CrPC, which is also an invaluable right provided to the accused.

x. In the same breath, Trial Courts need to balance other important considerations such as the right to a speedy trial. In this regard, we may caution that the above provisions should not be allowed to be misused as delay tactics.

xi. Apart from the above, the presiding Judge should follow the guidelines laid down by this Court while sentencing and imposing appropriate punishment.

xii. Undoubtedly, as discussed above, the menace of dowry death is increasing day by day. However, it is also observed that sometimes family members of the husband are roped in, even though they have no active role in commission of the offence and are residing at distant places. In these cases, the Court need to be cautious in its approach.

(Para 36)

Indian Penal Code, 1860 (45 of 1860), Sections 376(2)(f), 506 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Rape case – Victim resiled -- Petitioner has been behind bars for a substantial period of more than 1 year -- Further detention of the petitioner will not serve any useful purpose -- Petition accepted and the petitioner is ordered to be released on regular bail.

(Para 1, 6)

Indian Penal Code, 1860 (45 of 1860), Sections 363, 365, 366-A, 376, 467, 468, 420, 471 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- POCSO case – Rape and kidnapping – Regular bail -- Detention for more than six months – As per Voter I. Card and statement given by her before the Ld. Chief Judicial Magistrate/Duty Magistrate, her Date of Birth happens to be 07.08.2001 -- She further stated that she had married the petitioner at her own will on 13.10.2020 and wanted to live with him – Prosecutrix is now residing with her parents, it would be fair to assume that the petitioner even if now released on bail would not be in a position to exert any undue influence or administer threat upon her -- Trial is likely to take its own considerable time to complete due to ongoing covid-19 pandemic, the prayer of the petitioner for regular bail is allowed.

(Para 1-3)

Indian Penal Code, 1860 (45 of 1860), Section 376 (offences u/s 109, 328, 354-B, 506, 509 IPC added later on) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 438 – Rape case -- Anticipatory bail -- Complainant as of now is about 51 years of age having grandson and was on visiting terms with the family of the petitioner and visited Singapore and Malaysia with the petitioner -- There are entries of matrimonial status in the passport and joint affidavit of the parties, which according to the petitioner were prepared in order to ward off any objection in the foreign country for living smoothly – allegation of consensual relationship under the pretext of marriage -- Complainant was also married from whom she has not taken any divorce by lawful mechanism except to allege that a Panchayati divorce -- Parties are in advance stage of their life -- Both are having families -- Petitioner being already married is evident from the photographs of birthday celebration of son of the petitioner, which was attended by the complainant and her son – In the light of consensual relationship, it would remain debatable as to whether offence under Section 376 IPC is attracted or not -- Petition allowed.

(Para 8-10)

A. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 18, 20 -- Domestic violence – Prima facie case -- Summoning of -- Section 18 of the 2005 Act stipulates for a protection order in favour of a woman -- Section 20 of the 2005 Act deals with the monetary relief to the aggrieved party and the same can be granted by a Court -- Before issuing notice, the learned Magistrate has to be prima facie satisfied that there have been instances of a domestic violence.

(Para 22)

B. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 18, 20 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Quashing of summoning order -- Abuse of process of law – Petitioners, mother-in-law aged 65 years is 40% disabled from eyes, and is suffering from old age ailments, father-in-law, aged 73 years, is a chronic kidney patient and has been on dialysis thrice a week and married sister-in-law is a Government Teacher and since her marriage in 2009, she has been residing in her matrimonial home and looking after her two minor children -- A pure matrimonial dispute between husband and wife, has been given a colour of the proceedings under the 2005 Act so as to rope in hapless parents-in-law and a married sister-in-law -- They have been roped in with an oblique motive to harass and mentally torture them -- Moreover, the allegations leveled in the complaint are vague, general and omnibus in nature -- Proceedings qua the petitioners, are nothing, but a clear abuse of process of law -- Summoning order and all consequential proceedings arising therefrom, are quashed, qua the petitioners.

(Para 33-36)

Indian Penal Code, 1860 (45 of 1860), 304-B, 406, 498-A, 302 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 211, 216, 401 -- Dowry death case – Charge of Murder – Requirement of -- Charges framed u/s 304-B, 406, 498-A IPC – Prayer to add 302 IPC -- Perusal of contents of the FIR itself reveals that the complainant had raised only a suspicion qua the deceased having been poisoned to death – If during trial any new evidence comes on record, the trial Court concerned is fully competent u/s 216 Cr.P.C., to add and/or alter any such charge as it may deem fit -- Acid test would be based on the material, which may come to light during the course of the trial -- Petition dismissed.

(Para 5-11)

A. Indian Penal Code, 1860 (45 of 1860), Sections 302, 364A, 376, 216, 120B – Indian Evidence Act, 1872 (1 of 1872), Section 11, 106 -- Murder -- Rape -- Kidnapping -- Out of three eye-witnesses, two witnesses, turned hostile and did not support the case of the prosecution -- Both these witnesses are close relations of the victim and there is nothing on record to indicate that they were either put under any pressure or that there was any element of suspicion -- Both these witnesses were categorical that the persons who kidnapped the victim were not before the Court in the capacity as the accused – Third witness-informant, the father of the victim, reporting made by this witness, based on which the crime was registered neither shows that he was an eye-witness to the occurrence nor does it disclose that the identity of the accused who had kidnapped the victim was in any way known at the stage when the occurrence took place -- Thus, all three witnesses who were claimed to be the eye-witnesses to the occurrence and on whose testimonies, reliance was placed by the prosecution, are of no help.

(Para 20, 21)

B. Indian Penal Code, 1860 (45 of 1860), Sections 302, 364A, 376, 216, 120B – Indian Evidence Act, 1872 (1 of 1872), Section 11, 106 -- Murder -- Rape -- Kidnapping -- Circumstantial evidence – Though the post-mortem report discloses that the victim was sexually assaulted, the FSL Report on record does not establish any connection of the accused with the sexual assault on the deceased victim -- Dead body of the victim was found lying in an open field -- Record is again not clear as to when the present appellants were arrested and how and in what manner their disclosure statements led to the recovery of the dead body – There are of course circumstances like recovery of clothing apparel as well as tiffin box etc. belonging to the victim -- However, such recoveries by themselves, in the absence of any other material evidence on record pointing towards the guilt of the accused, cannot be termed sufficient to hold that the case was proved beyond reasonable doubt -- Not only those circumstances are not conclusive in nature but they also do not form a cogent and consistent chain so as to exclude every other hypothesis except the guilt of the appellants -- Held, prosecution has not been proved beyond reasonable doubt, and the appellants are entitled to the benefit of doubt -- Conviction and sentence set aside.

(Para 24-27)

A. Indian Penal Code, 1860 (45 of 1860), Section 498-A, 304-B -- Dowry Prohibition Act, 1961, (28 of 1961), Section 3, 4 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Indian Evidence Act, 1872 (1 of 1872), Section 113-B -- Dowry death – Regular bail -- Plea in bail application that the deceased was “suffering from severe headache and was mentally disturbed since the past nine months” and that she was taken to a doctor by the first respondent -- Medical prescription, would prima facie indicate that there was no serious ailment -- Medical prescription of the Ayurvedic doctor and the remedies prescribed belie such a claim -- Prima facie, there are serious allegations in the FIR in regard to the harassment suffered by the deceased in close proximity to her death over demands for dowry by the accused -- In view of the provisions of Section 304-B of the IPC, as well as the presumption which arises u/s 113-B of the Evidence Act, the High Court was clearly not justified in granting bail.

(Para 9)

B. Indian Penal Code, 1860 (45 of 1860), Section 498-A, 304-B -- Dowry Prohibition Act, 1961, (28 of 1961), Section 3, 4 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Dowry death – Regular bail – Setting aside of -- Order of the High Court granting bail contains absolutely no reasons at all -- High Court has merely recorded the submissions and in the extract proceeded to grant bail without any evaluation of the rival submissions – Seriousness of the alleged offence has to be evaluated in the backdrop of the allegation that she was being harassed for dowry; and that a telephone call was received from the accused in close-proximity to the time of death, making a demand -- An order without reasons is fundamentally contrary to the norms which guide the judicial process – Order of the High Court granting bail set aside.

(Para 10-13)

Indian Penal Code, 1860 (45 of 1860), Sections 376(2) (N), 506 -- Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of 1989), Sections 3 (W) (I) and 3 (2) (V) – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Rape case – Repeated complaints – Regular bail -- Prosecutrix is a married woman -- She lodged F.I.R. u/s 376 IPC against another person, who has been acquitted in the case -- Further got registered an F.I.R u/s 376 IPC against another, who was also acquitted -- Similarly she got one more F.I.R registered – Petitioner is behind bars for more than eight months and petitioner is not said to have any past criminal record, Court find it a fit case to accept the present petition and grant benefit of regular bail to the petitioner.

(Para 9-10)

Indian Penal Code, 1860 (45 of 1860), Sections 376, 363, 366-A, 506 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Sections 3, 4 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 – POCSO case – Bail to juvenile -- No reasonable explanation or finding given as to how the petitioner, if released on bail, would come into association with any known criminals -- Petitioner who is a juvenile, is in judicial custody since 14.10.2019 -- Both the Courts below have not referred to any social investigation report prepared by the respondent-State, as to the background of the petitioner or with whom he associates with -- To reject the appeal on a presumption that he would come into association with any criminal is wholly unjustified – Impugned orders are not sustainable in the eyes of law and as such, are liable to be set aside -- Revision petition allowed, petitioner directed to be released on bail.

(Para 4-6)

Indian Penal Code, 1860 (45 of 1860), Sections 363, 366-A -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Sections 6, 8 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- POCSO case – Hostile witnesses -- Regular bail -- Prosecutrix and her mother have not supported the prosecution version while appearing in the witness box and have been declared hostile -- Petitioner has been in custody since 13.1.2020 -- Trial will take time to conclude because of Covid-19 pandemic -- No useful purpose would be served by keeping the petitioner behind the bars – Petition allowed.

(Para 1, 6, 7)

Code of Criminal Procedure, 1973 (2 of 1974), Section 164, 216 -- Indian Penal Code, 1860 (45 of 1860), Section 354, 376-D -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 -- POCSO matter -- Rape – Alteration of charge -- In FIR and statement u/s 164 Cr.P.C. made by the victim, she has not specifically alleged rape and has only stated that the accused tried to outrage her modesty – Victim is 17 year old, when was medically examined, it was disclosed to the Doctor concerned that the victim had been raped -- Report of FSL also discloses that human semen was detected from the under-garments and from the vaginal swabs – No infirmity, whereby the trial Court has proceeded to alter the charges so as to frame charges for offences u/s 376D IPC and Section 6 of the POCSO Act.

(Para 6)

Indian Penal Code, 1860 (45 of 1860), Sections 363, 366-A, 376(3) -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – Code of Criminal Procedure, 1973 (2 of 1974), Section 53-A, 173 -- POCSO matter -- Blood sample for DNA test -- Investigaiton report already filed – Permissibility of -- Petitioner is facing a charge of committing repeated rape on the prosecutrix, who was less than 16 years of age and also for committing penetrative sexual assault upon her – Trial Court allowed the application for DNA test – Revision challenging the order -- Held, mere fact that application has been filed after submission of report u/s 173 Cr.P.C. is no ground to entertain revision petition as charges are yet to be framed.

(Para 6-8)

Indian Penal Code, 1860 (45 of 1860), Sections 376, 366, 323, 354-B, 347, 506 -- Arms Act, 1959 (54 of 1959), Sections 25, 54, 49 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Rape case -- Regular bail -- Person with whom the prosecutrix got married i.e. the petitioners' brother, and other co-accused, have been admitted to anticipatory bail by High court -- Petitioners' brother and the prosecutrix had earlier filed petition seeking protection of life and liberty upon having married each other – Testimony of the prosecutrix does not support the case of the petitioner, yet, keeping in view the entire circumstances, petition allowed – Order admitting the petitioner to interim bail, made absolute.

(Para 5-7)

Indian Penal Code, 1860 (45 of 1860), Sections 363, 366, 376 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- POCSO case – Rape – Regular bail – Compromise -- Since the investigation is complete and the challan has already been presented and a compromise has been arrived at between the parties, no useful purpose would be served in keeping the petitioner behind bars -- Petition allowed and the petitioner is directed to be released on regular bail.

(Para 4)

Indian Penal Code, 1860 (45 of 1860), Sections 376, 420, 494 495 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Rape case – Regular bail -- Petitioner married the complainant – Thereafter, the complainant came to know that divorce proceedings of the petitioner with his ex-wife were pending -- FIR was lodged – Petitioner in custody since 08.01.2021 – A compromise has already been effected between the parties -- Trial of the case would take long time to conclude -- Petition allowed and the petitioner is ordered to be released on bail.

(Para 3-11)

Indian Penal Code, 1860 (45 of 1860), Section 344, 366, 34 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – Code of Criminal Procedure, 1973 (2 of 1974), Section 235, 360 – Kidnapping case -- Appellant/ accused no. 4 & 5 are not a main accused – Sentence reduce to 3 months/ already undergone -- Many factors which may not be relevant to determine the guilt, must be seen with a human approach, at the stage of sentencing -- Main accusation was against accused no.1, who is convicted for offences punishable under Sections 344, 366, IPC and Section 6 of POCSO Act and sentenced to undergo imprisonment for a period of 10 years -- Even in the complaint, it was mentioned that accused no.1 was in love with the victim girl PW-2 -- It is also the case of the appellants that PW-1 was not a direct witness to the incident and PW-2 has been tutored by PW-1 -- Alleged incident is of the year 2014 and appellants (accused no. 4 & 5) have already served sentence of about three months and paid fine amount -- Pleaded that there is no one to take care of their minor son and old age parents -- Sentence modified for the period already undergone -- Appellants ordered to be released forthwith.

(Para 11)

Indian Penal Code, 1860 (45 of 1860), Section 376, 420 – Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- Rape case – Anticipatory bail -- Petitioner is a ‘Captain’ in Army and that the complainant is a matured educated lady aged about 32 years who is working as a Lecturer, complainant and petitioner were friends and there had been physical relationship amongst them on several occasions -- FIR lodged when the relationship went sour subsequently – On these contentions ad-interim bail was granted – Petitioner has joined investigation and is not required for any custodial interrogation -- Alleged rape would be debatable -- Petition accepted and the interim directions made absolute.

(Para 2-4)

Indian Penal Code, 1860 (45 of 1860), Sections 363, 366-A, 376, 376-D -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Sections 6, 17 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- POCSO case – Rape – Regular bail – Compromise -- Parties are stated to have amicably resolved their issues and while also noticing that the petitioner in any case has been behind bars since the last about 10 months, further detention of the petitioner will not serve any useful purpose -- Petition, as such, accepted and the petitioner is ordered to be released on bail.

(Para 6)

Indian Penal Code, 1860 (45 of 1860), Section 376 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Rape case – Relation on pretext of marriage – Non-performing of marriage -- Quashing of FIR -- From the contents of the FIR as well as the statement u/s 164 of CrPC three important features emerge: (i) The relationship between the appellant and the second respondent was of a consensual nature; (ii) The parties were in the relationship for about a period of one and a half years; and (iii) Subsequently, the appellant had expressed a disinclination to marry the second respondent which led to the registration of the FIR – Held, for the purposes of considering the application for quashing u/s 482 of CrPC, no offence has been established -- No allegation that the promise to marry was false at the inception on the contrary, from the contents of the FIR appears that there was a subsequent refusal – Held, High Court was in error in declining to entertain the petition u/s 482 of CrPC – Appeal allowed, impugned judgment and order of the High Court set aside -- Charge sheet in pursuance of the investigation and order of the trial Court taking cognizance shall stand quashed and set aside.

(Para 8-12)

Indian Penal Code, 1860 (45 of 1860), Section 498-A, 406 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 438 – Anticipatory bail – Non-recovery of dowry articles – Effect of -- Petitioner was granted ad-interim anticipatory bail – In the FIR u/s 498-A and 406 IPC, interim bail cannot be rejected on the ground that dowry articles have not been returned – Petitioner joined the investigation, order granting interim bail to the petitioner, is made absolute. Bhupinder Singh’s case 2014(2) RCR (Criminal) 109 relied.

(Para 3-8)

Indian Penal Code, 1860 (45 of 1860), Sections 376, 506, 120-B – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Rape case -- Anticipatory bail -- On submission that petitioner and the prosecutrix were willing to marry each other and it was only because of refusal by the mother of the petitioner that the marriage could not be solemnised and he is still ready and willing to marry with the prosecutrix, no MLR because the FIR is 9 months after the alleged occurrence, delay would certainly be material, interim bail was granted to join the investigation -- Petitioner has joined the investigation and is not required for further investigation of the case -- Interim order made absolute.

(Para 3, 4)

Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4 -- Indian Penal Code, 1860 (45 of 1860), Sections 363, 366-A (Section 376 IPC and Section 4 of the POCSO Act, 2012 added later on) – Rape with minor – Regular bail -- Compromise – Prosecutrix is now almost 18, compromise states that the petitioner and prosecutrix were in a relationship -- Petitioner is 24 year of age -- In view of the above, especially when the petitioner is in custody for over a year, he is not involved in any other criminal case, the COVID-19 pandemic and the conclusion of the trial is likely to take some time, Court deemed it a fit case to grant the concession of regular bail to the petitioner.

(Para 1, 2, 6)

Indian Penal Code, 1860 (45 of 1860), Section 376 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Rape case – Regular bail -- Compromise between parties -- Complainant/prosecutrix’s counsel stated that it is correct that affidavit has been furnished by the complainant before the police that she does not want to proceed with the prosecution – Held, there can be no compromise in serious offences like under Section 376 IPC in normal circumstances, however, for the purpose of considering the grant of regular bail various other factors are to be seen, at this stage -- Petitioner is in custody for the last approximately six months and investigation is already complete and report under Section 173 Cr.P.C. stands presented -- Trial of the case may take long time, this Court deemed it fit and proper to allow the present petition.

(Para 6-9)

Indian Penal Code, 1860 (45 of 1860), Section 376 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Rape case – Compromise quashing of FIR -- Since the parties have arrived at a compromise and have decided to live in peace, no useful purpose would be served in allowing the criminal proceedings to continue -- Accordingly, FIR u/s 376 IPC, and all the consequential proceedings, arising therefrom, are quashed qua the petitioners on the basis of compromise.

(Para 7, 8)

Indian Penal Code, 1860 (45 of 1860), Section 304-B, 498-A, 34 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 82, 482 – Dowry death case – Proclaimed absconder -- Accused was not in India at the time of incident – Contention that service of summons never effected/ co-accused acquitted -- On interim direction petitioner has surrendered before the trial Court, joined the proceedings and has been released on interim bail – As such the purpose for which the proceedings u/s 82 Cr.P.C. have been initiated stand achieved and the petitioner no longer remains an absconder – Bail order made absolute.

(Para 7-11)

Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4 -- Indian Penal Code, 1860 (45 of 1860), Sections 376, 506 & 34 (offences u/s 363, 366-A, 120-B & 109 IPC added later on) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Rape case – Regular bail -- Detention for 1 year, 2 months and 8 days -- Evidence of the material witnesses including Prosecutrix recorded – As per MLR there is “no evidence of any injury anywhere on the body, breast well developed. Axillary and Pubic Hair present. No Injury anywhere on external genitalia” -- Chemical Examiner's Report is also not helpful to the prosecution case -- In view of the long detention undergone by the petitioner as also the fact that the deposition of the material witnesses including the Prosecutrix have already been recorded, on account of which, there is no possibility of their being subjected to any kind of threat or pressure, at this stage, the prayer of the petitioner for regular bail allowed.

(Para 2-6)

Code of Criminal Procedure, 1973 (2 of 1974), Section 311 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6, 8 -- Indian Penal Code, 1860 (45 of 1860), Section 376-AB, 354A(I) – Rape case – Recall of minor witness/victim – Alleged that letter by victim stating about registration of wrong complaint -- Considering the fact that the victim/PW as duly supported the prosecution version and has proved the original complaint (Ex. P-1), which is in her own handwriting, and also in view of the fact that medical evidence duly supports the allegations of penetrative sexual assault on the victim, Court find no ground to allow the application to recall the victim/PW – Petition dismissed.

(Para 1,2,10)

Indian Penal Code, 1860 (45 of 1860), Sections 365, 323, 506, 142, 427, 34 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Abduction case – Compromise quashing of FIR -- Parties on intervention of respectables have decided to patch up their difference.  -- Nothing to show that nature of the injuries were serious -- To meet the ends of justice and that no useful purpose would be served by continuing with the trial, FIR alongwith all consequent proceedings arising therefrom quashed.

(Para 9)

Indian Penal Code, 1860 (45 of 1860), Section 376 – Code of Criminal Procedure, 1973 (2 of 1974), section 482 -- Rape case – Compromise quashing of FIR – Complainant solemnized marriage with petitioner – Keeping in view the report by the Trial Court that the parties have genuinely entered into a compromise and all the disputes between the parties have been resolved, it would not be in the interest of justice to continue the criminal proceedings -- Resultantly, FIR as well as all the subsequent proceedings arising therefrom, stand quashed.

(Para 7,11,12)

Constitution of India, Article 32 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 357-A – Indian Penal Code, 1860 (45 of 1860), Section 376 – Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of 1989), Section 3 -- Writ jurisdiction -- Rape victim – Rights of -- Held, petitioner being a rape victim deserves treatment as rape victim by all the authorities – A rape victim suffers not only a mental trauma but also discrimination from the society – Petitioner has two sons and one daughter – One son major, two children of the petitioner are still minor – Section 357A of the Cr.P.C provides procedure for grant of compensation, the petitioner had already made application to seek compensation under the above Scheme and payment of compensation has already been made. Directions given :

-- The Deputy Commissioner, to take measure to ensure that minor children of the petitioner are provided free education in any of the Government Institutions in District where the petitioner is residing till they attain the age of 14 years.

-- The Deputy Commissioner may also consider the case of the petitioner for providing house under Prime Minister Awas Yojna or any other Central or State Scheme in which petitioner could be provided accommodation.

-- The Senior Superintendent of Police, and other competent authority shall review the Police security provided to the petitioner from time to time and take such measures as deem fit and proper.

-- The District Legal Services Authority on representation made by the petitioner shall render legal services to the petitioner as may be deemed fit to safeguard the interest of the petitioner.

(Para 16-19, 25-27)

Indian Penal Code, 1860 (45 of 1860), Sections 363, 376-D, 506 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- POCSO case – Rape – Regular bail -- Previously also FIR was registered against the petitioner and other accused for the offences punishable u/s 376-D, 365, 323, 506 IPC and Section 6 POCSO Act, 2012, whereby a cancellation report submitted by the police has been accepted after hearing the complainant -- On similar allegations, the present FIR has been registered -- Affidavits given by the complainant and her daughter, wherein they have retracted from the allegations – Final report was filed on 06.02.2020, but the charges are yet to be framed -- Considering the custodial period of the petitioner, his further detention behind the bars may not be necessary -- Outbreak of pandemic COVID-19 may delay the conclusion of trial -- Petition allowed.

(Para 4-7)

Indian Penal Code, 1860 (45 of 1860), Sections 376, 417, 506 -- Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of 1989), Section 3 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Rape case -- Compromise quashing of FIR -- Perusal of the FIR goes to show that this is a case of physical intimacy between two consenting adults -- Complainant, who was of the age of 29 years at the relevant time in the year 2019 had only alleged that she had been allured by the accused/petitioner on the proposition of marriage -- It was never her case that at any time any actual force was resorted to on behalf of the petitioner – Complainant has herself compromised the dispute with the petitioner/accused -- F.I.R with all consequential proceedings arising therefrom, quashed qua the petitioner.

(Para 2, 6)

Indian Penal Code, 1860 (45 of 1860), Sections 498-A, 377, 506, 34 (Section 376(2)(n) IPC added later on) – Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- Rape case – Unnatural offence -- Live-in relationship – Anticipatory bail – Promise to marry, resiled after selection as constable – In FIR complainant has stated that she had been socially divorced and leading a single lady life she had been in a live-in-relationship with the petitioner since 2016 and before that she was leading a single lady life --  Interim bail was granted to join Investigaiton – Petitioner has joined the investigation and is not required for any further investigation – Petition allowed.

(Para 3-6)

A. Indian Penal Code, 1860 (45 of 1860), Section 361, 366 – Kidnapping of minor girl – Consensual affair with boy -- Appellant admits to having established sexual intercourse and of having an intention to marry her -- Whether a consensual affair can be a defence against the charge of kidnapping a minor? -- Held, section 361 IPC, bestows the ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians -- Therefore, a minor girl’s infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping -- Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted.

S. Varadarajan’s case (1965) 1 SCR 243 is distinguishable as it was restricted to an instance of “taking” and not “enticement” -- Cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused -- No fault can thus be found with the conviction of the appellant under Section 366 of IPC.

(Para 11-17)

B. Indian Penal Code, 1860 (45 of 1860), Section 359, 361, 366 – Kidnapping of minor girl – Consensual relationship with boy -- Appellant admits to having established sexual intercourse and of having an intention to marry her – Lower courts awarded 5 year R.I. -- Whether the punishment awarded is just, and ought there be leniency given the unique circumstances? -- Quantum of sentence awarded to the appellant deserves to be revisited for the following reasons:

first, it is apparent that no force had been used in the act of kidnapping. There was no preplanning, use of any weapon or any vulgar motive. Although the offence as defined under Section 359 and 361 of IPC has no ingredient necessitating any use of force or establishing any oblique intentions, nevertheless the mildness of the crime ought to be taken into account at the stage of sentencing.

Second, although not a determinative factor, the young age of the accused at the time of the incident cannot be overlooked. As mentioned earlier, the appellant was at the precipice of majority himself. He was no older than about eighteen or nineteen years at the time of the offence and admittedly it was a case of a love affair. His actions at such a young and impressionable age, therefore, ought to be treated with hope for reform, and not punitively.

Third, owing to a protracted trial and delays at different levels, more than twenty-two years have passed since the incident. Both the victim and the appellant are now in their forties; are productive members of society and have settled down in life with their respective spouses and families. It, therefore, might not further the ends of justice to relegate the appellant back to jail at this stage.

Fourth, the present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice. The appellant has been rehabilitated and is now leading a normal life. The possibility of recidivism is therefore extremely low.

Fifth, unlike in the cases of State of Haryana v. Raja Ram [(1973) 1 SCC 544.] and Thakorlal D. Vadgama v. State of Gujarat [(1973) 2 SCC 413.], there is no grotesque misuse of power, wealth, status or age which needs to be guarded against. Both the prosecutrix and the appellant belonged to a similar social class and lived in geographical and cultural vicinity to each other. Far from there being an imbalance of power; if not for the age of the prosecutrix, the two could have been happily married and cohabiting today. Indeed, the present instance is an offence: mala prohibita, and not mala in se. Accordingly, a more equitable sentence ought to be awarded.

Given these multiple unique circumstances, Court opined that sentence of five years’ rigorous imprisonment awarded by the Courts below, is disproportionate to the facts of the this case -- Concerns of both the society and the victim can be respected, and the twin principles of deterrence and correction would be served by reducing the appellant’s sentence to the period of incarceration already undergone by him -- Quantum of sentence is reduced to the period of imprisonment already undergone.

(Para 21-28)

A. Indian Evidence Act, 1872 (1 of 1872), Section 35 --  Date of birth -- Recitals of the admission and withdrawal register are admissible in evidence, as per Section 35 of the Indian Evidence Act.

(Para 18)

B. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4 -- Indian Penal Code, 1860 (45 of 1860), Section 376(3) -- Indian Evidence Act, 1872 (1 of 1872), Section 154, 155 -- Hostile witness – Evidential value -- Reliance upon other evidence -- Simply on the score that witnesses did not support the prosecution version in the Court, does not ipso facto lead to the conclusion that no such occurrence had taken place -- Their testimonies, as such, cannot be discarded in toto – Testimony of the hostile witnesses can be relied upon by the prosecution, to the extent to which it supports the prosecution version and cannot be treated as washed off the records -- There is no legal bar to base conviction of the accused, upon such kind of testimony, if corroborated by other reliable evidence.

-- While facing cross-examination, the prosecutrix has identified her signatures on Ex.P1 and Ex.P2 and she has also admitted about having undergone medical examination.

-- Though, she had stated about the statement Ex.P4 before the Magistrate, to be an outcome of pressure of the police but however, no reason, as such, has been assigned, as to why the police intend to falsely implicate the appellant by making the prosecutrix as tool.

-- No bitterness or animosity at the behest of the police, towards the accused-appellant, as such, is coming forth -- Neither the accused, in his statement u/s 313 Cr.P.C., has stated about the reason for false implication.

-- MLR, opinion has been given that-'possibility of sexual assault cannot be ruled out and depends on semen and DNA analysis of supplied cloth and swabs.'

-- As per conclusion in DNA report-The Autosomal STR analysis indicates that DNA profile of seminal stains on source of item no.3B (Cotton Swab) and item No.4 (Salwar) is matching with the DNA Profile of Irshad (Source of item No.6).

Result of genuine DNA test is scientifically adequate and reliance upon the same can be laid to establish the connectivity of the wrong doer -- Thus, in the light of such medical evidence brought on record, sexual assault upon the prosecutrix, as such, and the role of the appellant, is established -- When linkage of the appellant, as such, through scientific manner is coming forth, it was incumbent upon the appellant, to lead sufficient evidence to rebut the legal presumption u/s 29 of the POCSO Act, operating against him -- Convection u/s 4 POCSO Act and Section 376 (3) IPC, upheld.

(Para 22-30)

C. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4, 42 -- Indian Penal Code, 1860 (45 of 1860), Section 376(3) -- Section 376(3) – Retrospective effect of penal provisions -- Sentence awarded u/s 376(3) IPC, while considering the same to be greater in degree than Section 4 of the POCSO Act -- Amendment in the IPC, thereby, adding Section 376(3) IPC, received assent of Hon'ble President of India on 11.08.2018 and in the light of the same, it is submitted that no retrospective effect can be given to this provision, in view of the occurrence in question (allegedly) having taken place on 02.06.2018 – Held, submission so made is not tenable, as the Criminal Law (Amendment) Act, 2018, was deemed to have come into force on 21.04.2018 and that being so, it was in force at the time of taking of place of occurrence in question on 02.06.2018 – Ld. trial Court has imposed the minimum sentence (20 years RI), so provided in the aforesaid Section 376(3) IPC and the same is just and reasonable.

(Para 30)

Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4 -- Indian Penal Code, 1860 (45 of 1860), Sections 363, 366, 376, 120-B – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- POCSO matter – Rape case – Regular bail – Complainant filed an Affidavit to the effect that the subject FIR was registered on a misunderstanding – Medical examination report of the girl did not disclose the commission of rape upon her and there were no signs of any use of force -- Forensic DNA test report disclosed that no human semen was detected -- Final opinion of the expert was that there were no signs suggestive of penetration of the vagina or anus of the victim – Held, no case of sexual assault is made out, prima facie, against the petitioner -- Petition allowed.

(Para 1-6)

Indian Penal Code, 1860 (45 of 1860), Sections 376, 506, 511 (Section 367 added lateron) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Attempt to rape – Regular bail – Compromise between parties – Prosecutrix is 36 years of age -- An affidavit was executed by the complainant/prosecutrix wherein she has stated that the parties have since entered into Panchayati Compromise and therefore, she did not want to pursue any further with the proceedings – Concession of regular bail granted to the petitioner.

(Para 7-9)

Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 -- Indian Penal Code, 1860 (45 of 1860), Sections 363, 366 -- (Sections 376, 506 IPC and Section 6 of POCSO Act were added later on) – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Rape case – Regular bail -- Compromise between parties -- Petitioner has allegedly enticed away the victim on the pretext of marrying her -- FIR pertains to July, 2019 and at that time, the victim was below 18 years of age and now in view of the compromise, she has performed the marriage and is residing with the petitioner -- Petition allowed and the petitioner is granted anticipatory bail.

(Para 1-6)

Indian Penal Code, 1860 (45 of 1860), Section 376-D – Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- Gang rape -- Anticipatory bail – Prosecutrix was 36 years of age – I.O. is not in a position to dispute that the prosecutrix has not supported the contents of FIR in the statement recorded u/s 164 Cr.P.C -- Medical evidence has been sent to FSL and report is awaited -- Considering the facts of the case and the age (17 years) of the petitioner, he is granted anticipatory bail.

(Para 2, 4-6)

Indian Penal Code, 1860 (45 of 1860), Sections 323, 34, 406, 498-A, 506 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- Dowry harassment case – Anticipatory bail – Non-recovery of some dowry articles – Whether it is ground for refusal of pre-arrest bail – Ld. Session Judge held merely on the assertion of the complainant that more valuable articles are yet to be recovered, anticipatory bail could not be refused, criminal proceedings u/s 406 and 498-A of IPC are not meant for recovery of jewellery and dowry articles and complainant, if so chooses, can move civil court for recovery of the said articles – High Court saw no reason to take a different view and withdraw the concession of pre-arrest bail to the accused – Petition by complainant dismissed.

(Para 2-6)

Indian Penal Code, 1860 (45 of 1860), Sections 363, 366-A, 376(2)(n) -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – Code of Criminal Procedure, 1973 (2 of 1974), Section 164, 439 -- POCSO matter – Rape with minor – Regular bail -- Statement u/s 164 Cr.P.C. of the girl in question shows that she had gone willingly with the petitioner and it has been stated by her in no uncertain terms that nothing wrong was done by the petitioner or anyone else -- Only FSL report is on record and not the medical report -- No doubt, the prosecutrix is minor but in view of her statement recorded u/s 164 Cr.P.C. as also taking into account the age of the petitioner too who is 22 years alongwith the fact that the petitioner is in custody for the last more than one year, Court deemed it proper to enlarge the petitioner on regular bail.

(Para 1,6)

Indian Penal Code, 1860 (45 of 1860), Sections 363, 366-A, 376-C and 506 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Rape case – Regular bail -- FIR of 2003 – Compromise between parties -- Incident is 17 years old, the complainant is not willing to pursue the matter, the petitioner is in custody for over 06 months -- Covid 19 pandemic and the conclusion of the trial is likely to take some time, Court deemed it a fit case to grant the concession of regular bail to the petitioner.

(Para 8)

Indian Penal Code, 1860 (45 of 1860), Section Sections 365, 452, 376, 511 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Rape case – Regular bail -- MLR shows that the age of the prosecutrix is of 19 years -- No external marks of injury have been found on her body -- Furthermore, a perusal of the FSL report shows that human semen was detected only on exhibit-1 (underwear) not detected on rest of the exhibits mentioned in the FSL report -- Challan presented, charges are yet to be framed -- Petitioner is under incarceration since 5.1.2020 -- Due to outbreak of pandemic of COVID-19, trial would take a long time to conclude -- Petition allowed.

(Para 2-8)

Indian Penal Code, 1860 (45 of 1860), Sections 363 and 366-A (Section 120-B IPC added later on) – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Kidnapping case – Run-away marriage -- Protection petition after marriage -- Regular bail – Matriculation certificate shows that the date of birth of the prosecutrix is 26.03.2002 and in this manner, on the date when she solemnised marriage with the petitioner, she had attained the age of majority -- State submitted that as per the birth certificate issued by the Registrar (Births and Deaths), the date of birth of the prosecutrix is 26.11.2002 – Petitioner ordered to be released on bail.

(Para 2-6)

Indian Penal Code, 1860 (45 of 1860), Sections 363, 366, 34 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Kidnapping case -- Compromise quashing of FIR -- Parties got their statements recorded and Ld. Magistrate submitted report to the effect that the compromise is genuine – None has put in appearance on behalf of complainant party but no prejudice would be caused to them as they have already made a joint statement with regard to compromise before Ld. Magistrate – FIR and subsequent proceedings arising therefrom are quashed qua the petitioners on the basis of compromise.

(Para 2-8)